1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 G.S., Case No. 3:22-cv-03638-TLT (KAW)

8 Plaintiff, ORDER REGARDING 5/8/24 JOINT

DISCOVERY LETTER RE

9 v. PLAINTIFF'S RULE 35 MENTAL

EXAMINATION

10 QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC., [Discovery Letter No. 3] 11 Defendant. Re: Dkt. No. 54 12 13 On May 8, 2024, the parties filed a joint discovery letter concerning Defendant’s request to 14 take Plaintiff’s mental examination pursuant to Federal Rule of Civil Procedure 35. (Joint Letter, 15 Dkt. No. 54.) 16 On May 16, 2024, the Court held a hearing, and having considered the joint letter and 17 relevant legal authority, GRANTS Defendant’s request for a Rule 35 mental examination as 18 limited below. 19 I. BACKGROUND 20 Plaintiff G.S. alleges that she was sexually assaulted by one of Defendant Quest Diagnostic 21 Clinical Laboratories, Inc.’s phlebotomists on two occasions while visiting a Quest patient service 22 center in Marina, California. As a result, Plaintiff claims to have suffered mental trauma and 23 severe emotional distress. Plaintiff disclosed her claimed severe emotional distress in both her 24 complaint and October 2022 initial disclosures; the latter of which stated that she sought 25 compensatory damages “of at least $500,000.” (Joint Letter, Ex. B.) 26 In the original scheduling order, the presiding judge set a deadline of September 25, 2023 27 to complete both fact and expert discovery. (Dkt. No. 28.) Thereafter, the fact discovery deadline 1 deadline was not. As a result, expert discovery closed on September 25, 2023, and neither party 2 disclosed experts nor exchanged reports by the June 30, 2023 expert disclosure deadline. (Joint 3 Letter at 2.) 4 Defendant first raised the possibility of having Plaintiff submit to a Rule 35 mental 5 examination on January 25, 2024. (Joint Letter at 2.) On March 4, 2024, Defendant sent a letter to 6 Plaintiff that proposed that Dr. Marc Cohen serve as the examiner, but, contrary to defense 7 counsel’s representation at the hearing, it did not include the time, place, and manner information 8 required by Rule 35(a)(2)(B). (See 3/4/24 Letter, Dkt. No. 58.) The parties met and conferred in 9 April and May 2024 regarding the proposed examination. 10 On May 8, 2024, after being unable to reach an agreement, the parties filed the instant joint 11 letter. The Court held a hearing on May 16, 2024, after which, at the Court’s request, Defendant 12 filed a copy of the March 4, 2024 meet and confer letter it sent to Plaintiff regarding the proposed 13 examination. (3/4/24 Letter, Dkt. No. 58.) 14 II. LEGAL STANDARD 15 Federal Rule of Civil Procedure 35 permits the court to order the physical or mental 16 examination whenever a case is “pending.” Fed. R. Civ. P. 35(a)(1). It does not otherwise set 17 forth when a demand for an independent medical examination (“IME”) must be made. 18 A party seeking to compel a psychiatric evaluation of an opposing party bears the burden 19 of affirmatively showing that the adverse party’s mental condition is in controversy and that there 20 is good cause for the examination. See Fed. R. Civ. Proc. 35(a); Schlagenhauf v. Holder, 379 U.S. 21 104, 118 (1964) (stating that these two requirements-in controversy and good cause cannot be met 22 “by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an 23 affirmative showing by the movant....”). “Mental and physical examinations are only to be ordered 24 upon a discriminating application by the district judge of the limitations prescribed by the Rule.” 25 Schlagenhauf, 379 U.S. at 121. Even so, Rule 35 is to be liberally construed. See Schlagenhauf, 26 379 U.S. at 114–15 (stating generally that discovery rules should be “accorded a broad and liberal 27 treatment”); Simpson v. Univ. Of Colorado, 220 F.R.D. 354, 362 (D. Colo. 2004) (“While Rule 35 1 discretion of the court.”). 2 III. DISCUSSION 3 There is no dispute that Plaintiff has put her mental condition in controversy. The dispute 4 is the second requirement, which is whether Defendant has shown good cause for the examination 5 under Rule 35(a)(2)(A). 6 A. Good cause 7 The factors courts typically consider in determining good cause include: “the possibility of 8 obtaining desired information by other means, whether plaintiff plans to prove her claim through 9 testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is 10 claiming ongoing emotional distress.” Franco v. Boston Scientific Corp., 2006 WL 3065580, at *1 11 (N.D. Cal. Oct. 27, 2006); see also Impey v. Office Depot, Inc., No. 09-cv-01973-EDL, 2010 WL 12 2985071, at *21 (N.D. Cal. July 27, 2010) (quoting Franco, 2006 WL 3065580, at *1). While 13 Plaintiff has not designated an expert witness, she is claiming ongoing emotional distress. 14 Furthermore, Defendant argues that the good cause requirement is met because she claims ongoing 15 emotional distress, and the information is not available through other means, because Plaintiff 16 alleges to have previously suffered from a prior sexual assault, rendering a mental examination 17 “necessary to understand and obtain information about potential other causes of the mental injuries 18 that Plaintiff claims to suffer.” (Joint Letter at 5-6.) 19 While the Court finds that Defendant meets the requirements for good cause as a technical 20 matter, its delay in raising the demand until January 2024, despite prior stipulations to extend the 21 fact discovery deadline being silent as to any Rule 35 exam, could be found to be tantamount to 22 acting in bad faith. Regardless, the Court declines to make a bad faith finding, and finds that good 23 cause exists to permit the Rule 35 examination. 24 B. Prejudice 25 Although not explicitly part of the good cause analysis, courts tend to consider prejudice to 26 the plaintiff when ordering them to undergo IME. See Impey, 2010 WL 2985071, at *21. One way 27 to reduce prejudice is to extend discovery deadlines to accommodate the IME and the deposition 1 deposition after the close of fact discovery. The Court finds that this will reduce some prejudice 2 and is appropriate under the circumstances. 3 The Court notes that Plaintiff would be subject to extreme prejudice if the presiding judge 4 ultimately permits the examiner to testify at trial, because the IME was sought long after the close 5 of expert discovery, and neither party timely disclosed experts. This potential prejudice, however, 6 is not sufficient to preclude the examination, as Rule 35 does not require that the examining 7 physician testify or even serve as a designated expert. 8 C. Exam Administration 9 i. Choice of Examiner 10 Without citing legal authority, Plaintiff objects to Defendant’s selection of Dr. Marc Cohen 11 as the examiner. (Joint Letter at 3.) “Although the Court is not required to accept defendants' 12 proposed examiner as the examining psychologist, only if plaintiff raises a valid objection will the 13 Court appoint a different examiner.” Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609 (C.D. 14 Cal. 1995)(citation omitted). 15 Here, Plaintiff argues that, if ordered, the examination should be conducted by a doctor 16 who can speak Spanish and is, preferably, a woman. (Joint Letter at 3.) As an initial matter, 17 Plaintiff is not entitled to a female examiner. To the extent that Plaintiff requires Spanish language 18 services, while the use of an examiner fluent in Spanish may be preferable, see, e.g., Silva v. 19 Mercado Food Enter., Inc., No. 1:10-cv-02368-AWI, 2012 WL 174926, at *3 (E.D. Cal. Jan. 20, 20 2012), the use of certified interpreters is generally acceptable. See Ayat v. Societe Air France, No. 21 06-cv-1574-JSW-JL, 2007 WL 1120358, at *7 (N.D. Cal. Apr. 16, 2007) (neutral, court-certified 22 Arabic interpreter permitted); see also Sosa v. M/Y Nice Try, No. 10CV280-JAH (BLM), 2011 23 WL 13152493, at *6 (S.D. Cal. Sept. 16, 2011) (defendant’s certified Spanish to English translator 24 acceptable). 25 Thus, Plaintiff’s objection to Dr. Cohen conducting the examination is invalid and is 26 overruled. The Court, however, requires that the Spanish interpreter be certified and from a 27 neutral agency. 1 ii. Recording of the Examination 2 While not clearly addressed in the letter, Defendant’s proposal includes that it will be 3 video- and audio-recorded, but Plaintiff objects to the recording. (Joint Letter at 4, Ex. E.) Courts 4 || generally disfavor recording examinations “for fear of invalidating testing results and failing to 5 || provide a ‘level playing field,’ as plaintiff □□ not required to record [their] own examinations with 6 [their] own health care providers.” Ashley v. City & Cnty. of San Francisco, No. 12-cv-00045-JST 7 || KAW, 2013 WL 2386655, at *4 (N.D. Cal. May 30, 2013) (quoting Tomlin v. Holecek, 150 8 || F.R.D. 628, 632 (D. Minn. 1993)). 9 Defendant has not explained why it wishes to record the examination, other than the 10 || proposal mentioning that Plaintiff's deposition was also recorded. (See Joint Letter, Ex. E.) This 11 is not a sufficient reason, so the Court limits the scope of the examination by prohibiting its 12 || recordation by any means. 13 iii. Scope of examination 14 The Court declines to address the tests to be performed and, instead, defers to the 3 15 examiner’s professional judgment. 16 Iv. CONCLUSION 3 17 For the reasons set forth above, the Court GRANTS Defendant’s request to have Dr. 18 Cohen perform a Rule 35 mental examination, subject to the limitations above, including that it 19 will not be recorded and that a neutral, certified interpreter be utilized. Defendant shall make Dr. 20 || Cohen’s report available to Plaintiff as soon as it is received and shall make him available for 21 deposition as soon as practicable. 22 The parties shall meet and confer within 7 days regarding scheduling Plaintiff's 23 examination, including the date, time, and location thereof. 24 IT IS SO ORDERED. 25 || Dated: May 21, 2024 :

27 United States Magistrate Judge 28